Georgia – A Unique Case For The ICC

More than one year has passed since the International Criminal Court (ICC) opened an investigation into the situation in Georgia. The investigation is related to crimes allegedly committed in and around the breakaway region of South Ossetia during the course of the 2008 conflict with Russia.

A Unique Investigation

This is a big step for the court because it is the first time it will be investigating a conflict outside Africa. For almost thirteen years the ICC has been operating in eight African countries, thus acquiring a certain level of expertise in the region. However, the ICC has been strongly criticized for opening investigations only in Africa. While the trend has now been broken, this new development also brings up a big question: what happens next?

It is hard to compare the situation of Georgia to others with an aim to predict the outcome of the investigation. Of the ten ongoing investigations, five relate to member state referrals in the context of internal armed conflicts between the government and rebel groups. The two referrals from the UN Security Council relate to the civil uprising against Gaddafi regime in Libya and the armed conflict among the Sudanese government, militia, and rebel forces in Darfur. Two of the proprio motu situations, which the ICC Prosecutor initiated independently, relate to post-election violence in Kenya and Cote d’Ivoire.

In Georgia’s situation, which was also authorized as a proprio motu investigation, the court is investigating crimes committed during an international armed conflict for the first time. As noted earlier, the investigation covers the 2008 conflict between Georgia and Russia. The former has been an ICC member since 2003 and officials have previously made statements demonstrating their willingness to cooperate with the investigations. The latter is a permanent member of the UN Security Council and has already declared of its intentions not to cooperate with the ICC, culminating in the removal of its signature from the Rome Statute this past November.

In addition, in Georgia there was a gap of over seven years since the crimes were committed and the opening of the ICC investigation. In contrast, in most of the court’s previous experiences, an investigation was opened just one to two years after crimes occurred. The situation in Georgia is unique in many ways and brings new challenges related to a lack of knowledge of the new region, inexperience of dealing with international conflict, and non-cooperation of a very powerful country involved in the conflict.

ICC Activities

There has not been much action from the court since the opening of the investigation. The ICC is rightfully preoccupied with African developments, especially with the recent withdrawal requests from Burundi and South Africa, let alone the six ongoing trials and nine pre-trial cases, all related to African situations. In her most recent statement, ICC Prosecutor Bensouda has declared that so far the Office of the Prosecutor (OTP) has been dealing with “technical matters” and more “specific steps” will follow soon.

In the wake of Russia’s withdrawal as a signatory to the Rome Statute, Georgia has reconfirmed its commitment to the ICC and to the ongoing investigation. During his meeting with Bensouda, Prime Minister Giorgi Kvirikashvili stated that the Georgian government will provide full support to the OTP investigation. Bensouda reportedly declared at the same meeting that the investigation will proceed despite Russia’s non-cooperation with the court. Prior to this, during an event at the November 2016 Assembly of States Parties, she was reported to have said that the OTP will find other ways to obtain evidence. Nevertheless, it seems as though the court and the OTP, in particular, does not have a special strategy for Georgia.

What’s Happening in South Ossetia?

Leaders of South Ossetia have followed Russia’s lead in denouncing the ICC investigation and, as an alternative, very recently requested Russia to initiate an international search for 30 of Georgia’s military personnel. South Ossetian authorities are also planning a referendum on renaming the territory to the “State of Alania,” which is anticipated to be a step before integrating with Russia. Last year, a similar referendum was supposed to take place on the issue of joining Russia, but it was delayed until this year’s presidential elections, planned for April 9. According to South Ossetia’s de-facto president Leonid Tibilov, the issue of joining Russia will be discussed after presidential elections.

The potential incorporation of South Ossetia into Russia could result in the joining of military forces as well. It has been reported that South Ossetia plans to integrate its military forces into the Russian army. This could bring an additional level of protection for potential perpetrators from South Ossetia because Russia is unlikely to execute arrest warrants against its own nationals.

Victims of the Conflict

In the meantime, a large majority of victims are reported to be in an informational vacuum as they have not heard much about the ICC investigation. Their focus is on everyday financial and security matters. The victims living near the South Ossetia border are reported to be regularly arrested and kidnapped by Russian border guards on allegations of illegal border crossing. Recently, a 69-year-old man was abducted when collecting firewood in his own garden located near the border of Georgia and South Ossetia. He was released after paying a fine of 2000 Russian rubles (approximately 30 Euros), but he allegedly suffered a concussion as result of ill-treatment during his detention at the Tskhinvali police station.

Such arrests and kidnappings seem to have become frequent for several reasons. First, border lines are not always clear because the wired fences move periodically. There are even cases when people find their houses outside of the Georgian border within a day. Kidnappings also seem to have become an additional source of income for the border guards, thus amplifying the security concerns of victims of the 2008 conflict that still live in the region.

Realization of the unique character of this situation is the first step for all stakeholders before engaging. International support for victims as well as for the ICC is crucial. Member states of the ICC will need to play a big role in Georgia’s situation to support the court in implementing its duties and in overcoming challenges that come with this unique case, including defending the court against attacks from Russia.

While this year the ICC is planning to open a field office in Georgia, there seems to be no sufficient understanding of the local and regional context that would allow the court to effectively operate on the ground. Moreover, member states, international organizations, and donors also lack projects to support victims and the affected communities. The lack of international support could jeopardize the court’s successful implementation of its activities.

Admittedly, civil society in Georgia has much to learn from the experience of others who have interacted with the ICC. However, support to local civil society is crucial because they represent the only existing link between the court and victims. Activities, such as raising awareness about the investigation to the public and victims, providing legal and psychological assistance to victims, and facilitating communication between the court and victims, will go a long way in making the ICC’s investigation in Georgia meaningful to those most in need.

Nika Jeiranashvili is the ICC Project Officer at the Open Society Georgia Foundation.